The challenge to the constitutionality of the mandate requiring individuals to purchase health insurance under the recently enacted Patient Protection and Affordable Care Act, Public Law 111-148, is making front page news today. That’s because the government has decided not to seek en banc review of the Eleventh Circuit’s decision striking down the individual mandate.
As we reported in a breaking news post back in August, a divided Eleventh Circuit held that the individual mandate is unconstitutional. See Opinion, State of Florida, et al. v. United States Department of Health and Human Services, et al. (Eleventh Circuit, Case No. 11-11021). The Eleventh Circuit’s decision directly conflicts with the Sixth Circuit’s June 29, 2011 decision upholding the individual mandate. See Opinion, Thomas More Law Center, et al. v. Obama, et al. (Sixth Circuit, Case No. 10-2388). While the Supreme Court has already been eyeing the constitutional challenges to the health care statute given the national importance of these cases, the Circuit split only enhances the odds that the Supreme Court will weigh in. And, of course, Supreme Court review is always more likely when the government files a cert petition.
If the government had sought an en banc hearing before the Eleventh Circuit, the lawsuit likely would have been delayed for almost a year, which would mean that the Supreme Court would not have decided the case until after the 2012 presidential election. As it stands, it is quite possible that the Eleventh Circuit case will be consolidated with the Thomas More case from the Sixth Circuit, which has already landed at the U.S. Supreme Court. As we previously reported, the plaintiffs in the Thomas More case filed their petition for writ of certiorari back in July. The government’s response to the plaintiffs’ cert petition is due tomorrow.